Public Bill Committee

[Sir Nicholas Winterton in the Chair]
CJ&I 399 Immigration Law Practitioners’ Association
CJ&I 400 National Association for Healthcare Security

Nicholas Winterton: On this rather damp, depressing and unfortunately climatically unpleasant day, I welcome hon. Members to the 11th sitting in Committee of the Criminal Justice and Immigration Bill. Progress is indeed being made. It seems a long time since I was in the Chair, but I know that Tuesday’s proceedings were well chaired by the third Chairman who had to be appointed, Mr. Frank Cook.

Clause 35

Investigation of deaths

Edward Garnier: I beg to move amendment No. 153, in clause 35, page 25, line 4, at end insert
‘, including an offence under the Corporate Manslaughter Act 2007,’.
May I say what a total and unalloyed pleasure it is to see you back in the Chair, Sir Nicholas. You are quite right: we made good progress under the chairmanship of Mr. Frank Cook and we are grateful to him for stepping in to assist you and Mr. O’Hara.
I do not wish to add to the gloom of today, but I want to talk a bit about corporate manslaughter and investigation into deaths. We are discussing the remit, the powers and the role of Her Majesty’s commissioner for offender management and prisons. We have debated his accountability to the Secretary of State. We would prefer him to be accountable directly to Parliament, but for one reason or another, even if I did not lose the argument, I certainly did not persuade the Committee of that.
However, I want to tease out from the Government what the commissioner will be able to do. In relation to the investigation of deaths, it is important that we understand from the Government precisely what their policy is with regard to deaths in custody. Hon. Members will remember that we had some vigorous debates on the Floor of the House earlier this year when we discussed the Corporate Manslaughter and Corporate Homicide Act 2007 about whether deaths in police custody or prisons might attract investigations and possibly prosecutions under the Act’s regime. As I remember, the compromise that was reached eventually was that, while accepting that corporate manslaughter should bind upon the Prison Service and the police, the Government acknowledged that there would be a delay of about three years.

Maria Eagle: Three to five.

Edward Garnier: Between three and five years, is it? Well, there we are. Even compromises get compromised. The process would take that time before it bit upon the Prison Service and the police. It is not a matter of interest for a debating society, but a fundamental matter about the powers of the state and its powers over individuals in involuntary custody. We know from the clause that the commissioner will carry out investigations into deaths falling within what is delightfully called the “deaths remit”. The clause states:
“A death falls within the deaths remit if it is of a description specified in Schedule 8.”
I shall not take the Committee through every paragraph of schedule 8, but it is interesting that paragraph 2 refers to
“A death of a person while in the custody, or under the control or escort, of prison officers or prisoner custody officers anywhere in the world.”
That is a description of a set of circumstances that comes within the commissioner’s deaths remit. “Anywhere in the world” includes within this jurisdiction, but I submit that we need clarification, hence my tabling the amendment, of how precisely a death in custody or of the sort described under paragraph 2 of the schedule fits.
We are not complaining. Indeed, we welcome the fact that, under clause 35(3), the commissioner must aim
“to establish the circumstances surrounding the death; and...to identify steps that should be taken for the purpose of eliminating or reducing the risk of deaths occurring under the same or similar circumstances.”
It is suggested that the commissioner should
“determine the scope of, and the procedure to be applied”
in any investigation. However, clause 35(6), which is where the amendment would bite, does not specifically refer to deaths that might attract an investigation under the Corporate Manslaughter and Corporate Homicide Act. Clause 35(6) reads:
“In subsection (5) “criminal investigation” means an investigation conducted by police officers or other persons with a view to ascertaining whether an offence has been committed or whether a person should be charged with an offence.”
I dare say that the Government may say that a death that might attract an investigation under the Corporate Manslaughter and Corporate Homicide Act is implied within clause 35(6). If that is true, I would like to hear the Minister say so; if not, I would like the Minister to explain why it is not implied and why corporate manslaughter is, by implication at least, expressly not included in the Bill. That is the short point that I wish to draw to the attention of the Committee and I invite the Minister to respond.

Maria Eagle: It is good to see you back in the Chair, Sir Nicholas. Although it seems to you like a long time since you have been here, I hope that I speak for the entire Committee when I say that it does not seem like that to us. [Hon. Members: “Hear, hear.”] Time passes so swiftly.
I should like to reassure the hon. and learned Member for Harborough with respect to the point he has made and his amendment. The commissioner will defer, where necessary, to a criminal investigation of any offence, including any that is being investigated under the Corporate Manslaughter and Corporate Homicide Act. Obviously, as the hon. and learned Gentleman has already said, while that legislation comes into force generally next April, it is not being applied immediately to custody, but will apply in the not too distant future, within the next three to five years.
Work is under way with the Prison Service and other custody providers to identify what steps must be taken to ensure that they are ready to deal with the application of the Corporate Manslaughter and Corporate Homicide Act to the settings that they control. I think that everybody remembers the passage of that legislation through Parliament, with the ping-pong at the end of the previous Session. In fact, it was a carry-over Bill from the Session before that, so it was ping-pong out of time or early ping-pong, if I might call it that. As was said at that time by the Secretary of State, we will be reporting to Parliament annually on progress made in respect of applying that legislation to the custody setting, where it is accepted that there are greater difficulties in applying it, although those are not insurmountable.
I hope that the hon. and learned Member for Harborough is reassured that there is no attempt to exclude from the remit of the commissioner any offence that might be investigated under that legislation when it applies to the custody setting. [Interruption.] The hon. and learned Gentleman is obviously getting instructions about whether to withdraw his amendment, but I should have thought that he is perfectly capable of making up his own mind. I shall clearly continue talking for a while, but not for too long. I hope that with those reassurances, the hon. and learned Gentleman will feel able to withdraw his amendment.

Nicholas Winterton: I do not wish to sound in any way schoolmasterly, but I hope that members on both sides of the Committee will switch electronic devices on to silent or vibration, so that there is no disturbance to upset our deliberations and calm scrutiny of the legislation.

Edward Garnier: I am between a rock and a hard place. I thought that I had put my telephone on silent as I came into the Committee Room, but I was faced with a dilemma when the telephone rang because, while I was enjoying listening to the Minister and was anticipating listening to other contributions during our debate, I noticed on my telephone screen that the call was from my wife, so the question was who I should obey. I obeyed you, Sir Nicholas. I do not know whether you have met my wife. That was a difficult decision.

Alun Michael: Send her a copy of Hansard.

Edward Garnier: Of course, every morning I present her with copy and say “Watch my lips”. However, I am getting diverted, and I may be in for some other form of manslaughter unless I revert to the issue under discussion in clause 35.
I am grateful to the Minister for having explained the corporate manslaughter provisions. When they are finally implemented they will bind upon, or not hinder, the commissioner in his investigatory work. Despite pressure from various interest groups, the Government have at last agreed to allow the corporate manslaughter regime to cover what the Minister delicately called “the custody setting”. It is hugely important that the commissioner is permitted to deal with matters that might lead to investigations and prosecutions under the Corporate Manslaughter and Corporate Homicide Act. On that basis, I am satisfied that clause 35 does not need to be amended in the way that I suggested, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Schedule 8

The Commissioner’s deaths remit

Amendment made: No. 314, in schedule 8, page 160, line 26, leave out from first ‘under’ to end of line 27 and insert ‘—
(a) the Immigration Act 1971 (c. 77);
(b) section 62 of the Nationality, Immigration and Asylum Act 2002 (c. 41); or
(c) section 36 of the UK Borders Act 2007 (c.30).’.—[Maria Eagle.]

Maria Eagle: I beg to move amendment No. 315, in schedule 8, page 160, line 30, after ‘premises’ insert ‘or in Scotland’.

Nicholas Winterton: With this it will be convenient to discuss Government amendments Nos. 316, 302, 304, 317 and 310 to 312.

Maria Eagle: This is a series of technical amendments to clarify the extent of the provisions in part 4. Much of the commissioner’s remit with respect to deaths will be confined to England and Wales but, as immigration matters will remain the responsibility of Parliament and are not devolved to Scotland and Northern Ireland, the commissioner’s complaints remit in respect of such matters will extend throughout the UK. Deaths in immigration custody in Northern Ireland will also come within the commissioner’s deaths remit. The amendments preserve the primacy of the Lord Advocate in the investigation of deaths in Scotland. The amendments ensure that the dividing line is drawn in the right place. I am happy to answer any challenges that hon. Members may have, and to explain the extent and purpose of each amendment. However, the purpose of all of them is to clarify the extent of the commissioner’s power.

Sally Keeble: Will my hon. Friend confirm whether the commissioner will have powers to investigate deaths in secure training centres? It says that in the schedule, but when I asked in the House I received a different reply. I should be grateful if my hon. Friend would confirm the position.

Maria Eagle: That is in the Bill. There has been some discussion between the Youth Justice Board and the Department about whether it should remain that way. At present, though, that is how the Bill works.

Sally Keeble: Does that include the prison establishments for children and young people as well as secure training centres? Will my hon. Friend say a bit more about the debate. Obviously, I want to see those institutions retained in the Bill, which is why I brought the matter up. When I asked our right hon. Friend the Secretary of State in the House, he said that secure training centres would not be covered, so I was a bit surprised to see them in the Bill.

Maria Eagle: My understanding is that there has been some debate between the Youth Justice Board, the commissioner and the Department about whether that is the appropriate way to deal with deaths in secure training centres. At present, it is in the Bill and no amendment has been tabled to remove it. Clearly, there will be an opportunity to do so later if there is some change of view on the matter. To my knowledge, though, there is no reason to think that that will happen. However, discussions are ongoing at a technical level between the Youth Justice Board and the commissioner. I am not promising at this stage that there will not be some further clarification in respect of this, but no amendment has been tabled to change this. I realise that my answer might not be as helpful as my hon. Friend might like, but that is the current position.
As I said, I could read out the technical detail of each amendment, and I am happy to do so if people have particular questions about them. Their general intent is to clarify very precisely the extent of the commissioner’s powers and to ensure that there are no mistakes, which could be very sensitive when we deal with the devolved administration. The amendments ensure that there is no error in the precise way in which these matters are set out in the Bill. They cover minor technical matters. On that basis, I commend the amendments to the Committee.

Sally Keeble: I apologise for not being here at the start of the meeting, but I was caught up in traffic. I strongly support the proposals as they stand and urge that they are not amended. I had considered tabling an amendment to this section to include secure training centres and other youth establishments in the list of institutions that were to be under the remit of the commissioner, which was why I raised the matter with the Secretary of State. To my astonishment I found that they had been listed in here, which was contrary to what I had understood from his response to me. It is really important that children and young people have at least the same level of protection as other offenders. Preferably I want them to have more protection. Having unfortunately had to deal with one of those cases, and being aware of a number of others, I believe that it is important to have a visible, clear and centralised mechanism for investigating such deaths. At present, I understand that most of the protections for children come through the local authority and the safeguarding children board, so if something happens the case goes back out to the local authority.
The problem is that the local authority may be some distance from the institution concerned. In the case of Gareth Myatt—I know, Sir Nicholas, that you are familiar with that case and my concerns about it—the local authority was a long distance from the institution concerned. I am sure that the local authority is perfectly competent to safeguard children’s issues, but the fact remains that Gareth’s family did not have quite the access to the local authority that they might have had because of their personal circumstances. The level of scrutiny that should have been applied in that case does not seem to have happened until very much later. At the inquest, a whole pile of information came out that strictly speaking should have been dealt with much earlier; it quite properly had to deal not only with the circumstances of the death but the treatment leading up to it. I imagine that the commissioner will look at much more closely at that, as it is really important.
I also have some qualms about references being made from secure training centres to local authorities, because the follow-through is not always rigorous. That is partly because of the vulnerability of the young people and their families and partly because they are not always able to pursue their complaints. All who support such families know perfectly well that some of them have real difficulties in pursuing their complaints through the local authority via existing mechanisms.
Another important factor is that people who are used to dealing with care issues seem to have some difficulty in dealing with what goes on inside prisons or secure establishments and working out whether it is good or bad. I think, for example, of the monitoring and management of restraint. At the inquest into the death of Gareth Myatt, the Home Office monitor clearly expressed his difficulty in challenging some of the decisions made and some of the practices going on at Rainsbrook. That is very telling. It is important that those looking into the deaths of children and young people in prisons and secure training centres should have the skills necessary to deal with custodial matters, such as the use of force and physical restraint. They should understand the culture of what happens in prisons. The same safeguards should be put in place for children and young people.
I strongly support the proposals as they stand. If my hon. Friend is thinking of watering them down, I very much hope that such suggestions will be resisted. I hope that the Bill goes through unamended.

Edward Garnier: I am grateful to the hon. Member for Northampton, North for returning us to this subject. It is one that she introduced on the Floor of the House in an Adjournment debate towards the end of the last Session. The Minister of State responded to that debate and I, too, was present as the shadow Prisons Minister.
The hon. Lady and I have a constituency interest in that in the case involving the death of her constituent in a secure training centre, one of my constituents was one of the officers who could have been prosecuted had the case been found to have a criminal tinge to it. Fortunately, for my constituent, it did not. Of course, that does not take away the appalling nature of the incident that led to the hon. Lady’s constituent dying and the tragedy that it caused the family.
Before we conclude on the deaths remit, I should like to remind the Minister of what the Prison Reform Trust said to us in its written submissions during the evidence sessions. It wanted to be assured that the deaths remit would extend to people held in police and court cells under Operation Safeguard, to children held in local authority secure children’s homes—that question may have been partly answered already—and to people who die within 72 hours of their release from custody.
The last point is particularly important, because the rate of self-harm and suicide in the first few days after release from prison is very high and far higher than it is in the ordinary population, if I may call it that. The period immediately after release is one of the most difficult periods for people. Approximately three quarters of prisoners who are released are suffering from some form of substance abuse that was not dealt with while they were in custody. They very often have nowhere to live and no job to go to. They have lost contact with their families; indeed, they are utterly lost and alone. That is not to suggest that they should not have been in prison—quite the contrary. For a great many people who are in prison, it is right that they went to prison. There is a proportion who perhaps should not have gone to prison, but there we are.
Whoever comes out of prison needs to be looked after by someone in many cases, but in many cases they are not and they die. They die from drug overdoses and suicide and, in my submission, the numbers are far too high. Can the Minister therefore confirm that the commissioner’s remit in matters of death does not stop simply because the death occurs outside the prison walls as opposed to inside the prison walls, so long as the period within which the death occurs is sufficiently and reasonably proximate to the date of release from custody?

Maria Eagle: I thank my hon. Friend the Member for Northampton, North, who, as other Committee members have made clear, has exercised a vigilant and extremely proper interest in this matter, particularly as it relates to the experience of her constituent and the family of Gareth Myatt. I want to make it as clear as I can that the remit will include, and is intended to continue to include, deaths, whatever the discussions between the Youth Justice Board, ourselves and the commissioner. The debate is about whether it should include complaints in secure training centres. My hon. Friend made points about that, which I will certainly pass on, so that they inform that debate.
The only question is whether the issue of complaints in secure training centres should still be dealt with by the new commissioner or whether that is better dealt with in other ways. We will come on to the issue of complaints, but I think that it is appropriate for me to say this now, with your indulgence, Sir Nicholas. Complaints from children detained in young offender institutions are included in the commissioner’s remit. Complaints from children held in secure training centres are included in the Bill. However, a debate is taking place between the commissioner, ourselves and the Youth Justice Board about whether that is the appropriate way to deal with complaints in secure training centres. The board is considering what changes may be needed in its system for investigating complaints in secure training centres and whether the commissioner should have a role. That has not quite been sorted out yet, but there is no question of deaths being taken out of the new commissioner’s remit. I hope that that assists hon. Members.
The hon. and learned Member for Harborough made points following on from the evidence that we had from the Prison Reform Trust. He set out the points that the trust made, so I will not go over them again. If there is a death in circumstances in which prisoners are held in court cells or police cells under Operation Safeguard, it will be investigated by the Independent Police Complaints Commission. Any deaths occurring among those recently held in court cells, who were in the custody of the Prison Service at night and escort contractors during the day, would fall within the commissioner’s remit under paragraph 2 of schedule 8. In the event of a death occurring after release from prison or immigration custody, the commissioner would have discretion to investigate it if he or she believed that it was linked to events that occurred during custody. The hon. and learned Member for Harborough made some comments about proximity in time and circumstances, and it would be for the commissioner to take a view on that matter, but if he thought there was good reason to investigate he would certainly be able to.

Sally Keeble: Will my hon. Friend deal with the issue raised by the hon. and learned Member for Harborough about secure local authority children’s homes?

Maria Eagle: My hon. Friend has anticipated me; I was just coming on to secure children’s homes, which are, of course, under local authority control rather than that of the Youth Justice Board. They are not provided primarily for criminal justice purposes; they are provided for welfare purposes in the main. There is already statutory guidance, “Working Together to Safeguard Children”, and the local safeguarding children board has a responsibility, with the local authority that places children, to make sure that the children’s welfare is looked after. Complaint and investigation arrangements are in place, including and up to serious case reviews if things go very wrong.
We do not at present accept that secure children’s homes should be included in the provisions, because they exist for a different purpose and have a panoply of arrangements that link the responsibility of the local authority in placing children in the homes for welfare reasons with the investigation of complaints on matters up to and including death.

Amendment agreed to.

Amendment made: No. 316, in schedule 8, page 160, line 38, after ‘premises’ insert ‘or in Scotland’.—[Maria Eagle.]

Schedule 8, as amended, agreed to.

Clause 36

Reports on the outcome of a death investigation

Edward Garnier: I beg to move amendment No. 154, in clause 36, page 26, line 2, at end add—
‘(8) A report published by the Commissioner, whether or not published with the consent of a complainant or his personal representatives, and a fair and accurate report published by another person of any such report if published contemporaneously, are for the purposes of the law of defamation published on an occasion of absolute privilege.’.
In clause 36, the commissioner is given permission, or required, to make reports to various people, including the Secretary of State and
“the controlling authority appearing to the Commissioner to have the most direct responsibility over the matters covered by the investigation”,
which might be, returning to our previous discussion, the police authority, the relevant prison governor—

Sally Keeble: The ombudsman.

Edward Garnier: Yes, even the ombudsman—or a coroner. Subsection (3) gives the commissioner permission also to
“make a report to any other person the Commissioner considers should receive a report.”
He will exercise that power
“to ensure that a report is made to at least one person who—
(a) is a personal representative of the deceased,
(b) was the partner, or other relative, of the deceased at the time of the death, or
(c) appears to the Commissioner to have been a friend of the deceased at the time of the death.”
That is all perfectly sensible and should be welcomed.
Subsection (5) clearly makes sense. It says that the commissioner need not report to such people
“if, after taking all reasonable steps to ascertain the identity of, and a means of contacting, a person falling within that subsection, the Commissioner is unable to comply with it.”
Sadly, there may be lots of prisoners who may have lost contact with their families, who cannot be discovered.
The clause deals with reports in writing. Subsection (7) gives the commissioner permission to
“(a) make different reports under this section to different persons;
(b) show any person a draft of the whole or any part of a report to be made under this section;
(c) publish the whole or any part of a report made under this section”.
I assume that when exercising his permission to show any person a draft of the whole or any part of the report, unless it is by publishing it—I use the word “publish” in the sense of making public, as opposed to making known to a third person—the commissioner will use his common sense and discretion and not give unduly wide publication to sensitive material. However, the Bill apparently gives him permission to publish it to whomever he wishes.

David Heath: Will the hon. and learned Gentleman advise me, as he is a great expert in these matters? The commissioner will have the power to publish to any person. The power is qualified by a requirement that
“the name of the deceased person must not be published under paragraph (c) without the consent of a personal representative of that person.”
What will the circumstances be when a report is published and is also available to a court? Will it become privileged information that can be freely published and disseminated on the basis that it is before a coroner’s court?

Edward Garnier: I do not want to have too long a discussion about it, but there are various sorts of privilege, with which we must be careful not to confuse ourselves. I shall come to the law of privilege within the common law on defamation, or statutory law as it will be if I succeed in my amendment. For the moment, I do not want to guess whether a report published by the commissioner in breach of a consent or without the consent of a personal representative of the deceased would take the commissioner outside any protections that he might have, either expressly or by implication. The Minister may well have something to say about that.
My amendment would expressly protect from defamation law both the commissioner and anybody who might wish to carry a fair and accurate report of what the commissioner reported. We all understand that deaths in custody, or deaths that come within the death remit, are hugely emotionally sensitive. Sometimes the commissioner will have to make some pretty hard criticisms of managers or individuals who work within—I shall use the expression, even though I have made fun of it—the custody setting. It is not in the public interest for the commissioner to feel inhibited, merely through fear of an action in defamation, from saying precisely what he thinks based on the evidence he has discovered. I need not give examples; I am sure that Committee members can easily understand the sort of inhibiting factor that might influence the commissioner. That is why I am suggesting a new subsection (8) in the terms of the amendment.
Absolute privilege is the privilege that protects us as Members of Parliament when we speak either in Committee or on the Floor of the House. Anything that we say is absolved from the law of defamation; it might breach the rules and regulations of the House, but we cannot be sued by a third party for saying it. Equally, a newspaper has absolute protection in reporting what we have said, so long as what it publishes is fair and accurate and is published contemporaneously. Protection from libel suit becomes qualified if the report is non-contemporaneous, and in that case issues of malice apply. The Minister suggests that a fair and accurate contemporaneous report is covered only by qualified privilege.

Maria Eagle: That is the point of contention.

Edward Garnier: I am reasonably sure that I am right, although I must admit that I have not practised at the defamation Bar for the past two years, so I might be getting rusty. If I am wrong, my colleagues in chambers can laugh themselves into distraction, but my memory is that fair and accurate contemporaneous reports are covered by absolute privilege whereas non-contemporaneous reports are covered only by qualified privilege.

Maria Eagle: The hon. and learned Gentleman is probably not as rusty as I, because I have never practised in defamation and it is 10 years since I practised at all. My memory is that qualified privilege applies, but I shall have it checked.

Edward Garnier: I suspect that the Minister is too young for her brain to have had the chance to rust at all. I am reasonably confident of my position, although confidence is a dangerous thing. I am reasonably sure that contemporaneous reports of parliamentary and court proceedings are absolutely privileged, but I am happy to be corrected by anybody. What I want to emphasise is that the commissioner needs express protection. If the Minister tells me that he is already protected by other measures, I shall be content.
It is an important matter of public interest both that the commissioner be protected and that we as the public should have access to his report and be able to read, if not the whole report, newspaper or media reports of what he has to say. During the past two years, I have been increasingly concerned about the secret world of prisons. I have often used that metaphor, which is getting a bit worn, but there is very little public knowledge of what happens inside prisons. I often say that of course prisons should have walls, but they should also have windows, so that the public can see inside and know what is being done in their name, and so that prisoners can see out into a world that will receive them back if they reform, rehabilitate themselves and show every sign of being prepared to live responsible lives. Having used that same analogy not so long ago, I was rung by a local journalist who asked me where I was going to get all the necessary public money to put windows in prison walls. As I said before, it is possible to lose the will to live on occasion!
It is through media reporting of what goes on inside prisons that the public gain access to the prison world. If deaths take place in custody or in secret places, the full glare of public reporting should be focused on them, not only as a discipline, to ensure that bad things do not go unnoticed and undealt with in prisons, but so that the public can know what is being done in their name. All of us—policy makers and practitioners in the criminal justice system and particularly in the world of custody—should learn from previous mistakes. That is the short point that I wanted to make. 
I am sorry that I have not brought my “Gatley on Libel”, which is my bible, or even the shorter version, Duncan and Neil. They are both good books, which I recommend to you, Sir Nicholas, and colleagues in my chambers have made very positive contributions to them—I shall not advertise my chambers much beyond that. However, I ask the Minister at least to acknowledge the principle behind my remarks, even though she and I may disagree over whether contemporaneous parliamentary court reports are covered by absolute privilege.

David Heath: It now seems rather late to welcome you to the Chair, Sir Nicholas, and I could not possibly do so in the same enthusiastic terms as the Minister, but I of course welcome you in what little way I can.
In another context, the speech that we have just heard from the hon. and learned Member for Harborough would have been extraordinarily expensive, but he is on to a good point, which needs elucidation from the Minister. I claim no expertise in this subject—I intervened on the hon. and learned Gentleman to try to expand my knowledge of it—but it seems to me that it is important that the privilege that may or may not apply to a report by the commissioner apply from the point of publication, not from or at the point at which the report is presented to a coroner’s court, which may be much later if there are adjournments or delays in the court’s proceedings.
That enables me usefully to ask the Minister whether she can help me in respect of the relationship between the coroner and the commissioner. We were rather hoping for a coroners Bill in this Session, but we are left hanging on the expectation that one may arrive if parliamentary time allows. I think that parliamentary time should allow for a Bill on the important issue of reforming the coroners’ courts system. My question, however, is whether, having received the report, it is in order for the coroner to request further investigation from the commissioner, because there is no express requirement for the commissioner to undertake further investigation. The coroner’s powers may in any case enable him to request further investigation. As further facts about a death in custody unfold during the coroner’s court hearing, it might be extremely helpful if the commissioner could be asked to carry out further investigations into a specific matter and to report back to the court. I would be happier if such provision, if it were necessary, was built into the Bill, but it may be unnecessary, and perhaps the Minister can reassure me on that.

Sally Keeble: Will my hon. Friend the Minister tell us about the sequencing of priorities in the reports and investigations? I am thinking of the Gareth Myatt case and others. The police had the first crack at it, followed by the Crown Prosecution Service. The decision not to prosecute took two or three years, after which there was a further delay, and the coroner’s investigation did not start until four years after Gareth’s death. Will the commissioner investigate immediately after a death, or will they have to wait for a decision whether to prosecute, which can take some time? If so, will he investigate before the coroner’s court, or regardless of what happens there?

Maria Eagle: A short, sharp legal debate at this time of the morning is quite difficult to cope with. The hon. and learned Member for Harborough might like to hear that I agree with him, in a qualified way, about the importance of protection for the commissioner’s reports from issues of defamation. If he turns to clause 44(12) on page 32 of the Bill, he will see that it uses terms pretty similar to those of his amendment.
I hope that he is satisfied with that, subject to our disagreement about how far absolute privilege extends beyond—to use the example that we heard—the Floor of the House and Committee, or in this case the commissioner’s report. My recollection is that qualified privilege would cover media reports; his is that absolute privilege will cover contemporaneous media reports. We are each half-right, to be kind about it. My understanding is that a full report of a parliamentary debate would be covered by absolute privilege, but extracts from the debate would be covered by qualified privilege. If we are to be kind and co-operative, we might say honours are even. I hope that he does not get too much ribbing from members of his chambers when he gets back. His amendment is not necessary, because the matter is covered by clause 44(12). I hope that that is sufficient for him to feel able to withdraw it.
The hon. Member for Somerton and Frome asked about the coroner’s role. The commissioner will have quite a lot of flexibility. He will certainly be able to reopen an investigation at any time to deal with new points that emerge from an inquest hearing or elsewhere. It is perfectly open to him, if he feels the need, to accept the suggestion from a coroner or anyone else that he ought to reopen an investigation to look a bit further.
My hon. Friend the Member for Northampton, North, on the basis of her experience with her constituent, made a point about the length of time that such investigations can take. It is an important point. As we discussed during debate on clause 35, the commissioner will be able to defer his own investigation if a criminal investigation is proceeding. That is the way that it will normally be done, but there is nothing to stop the commissioner from continuing an investigation if the criminal investigation becomes lengthy and he considers that deferring his own investigation further is not appropriate. He will be perfectly free to get on with his own investigation. The time periods in the case that my hon. Friend mentioned as an example were very long. It will be perfectly open for the commissioner to take a view on that and to continue his own investigation before the criminal investigation has come to a close.
We are seeking to give the commissioner the maximum flexibility to deal appropriately with the matters that we are putting in his remit in respect of deaths and of complaints. I hope that that has answered the points raised in the debate.

Sally Keeble: If part of the point of what is happening is to get the information out into the public domain—which was the reason for asking about the defamation laws—the Minister, and you, Sir Nicholas, will recall that there is also a sub judice rule, which prevented us from debating some of the relevant circumstances for four years. That needs to be thought about. We cannot allow a situation in which a possibly destructive commissioner’s report, which may perhaps even be covered in the press, cannot be debated in the House because we have gagged ourselves.

Maria Eagle: I am having to resort to my increasingly rusty legal memory, although the hon. and learned Member for Harborough may be able to help me, and should feel free to do so if he thinks it appropriate. My memory suggests that the sub judice rule would apply where criminal proceedings, rather than a criminal investigation, were under way. It would thus certainly be possible in the circumstances set out by my hon. Friend for the commissioner—we want to give him the necessary discretion and flexibility—to deal with cases, which are all highly individual, on a case-by-case basis, as he sees fit. The commissioner might take the view during an investigation of such a length as my hon. Friend mentioned, that it was taking too long and he intended to get on with his investigation.

Nicholas Winterton: May I intervene to help the Committee? The clause does not deal with the sub judice rule, so, to an extent, although I have allowed a modest reference, I do not think that we should labour the point.

Maria Eagle: I am always trying to be too helpful and not being mindful enough of the limits of the debate, Sir Nicholas. I have probably said enough. The point that the hon. and learned Member for Harborough rightly made is covered later in the Bill, and I hope that he will feel able to withdraw the amendment.

Edward Garnier: I thank the Minister for reminding us of clause 44(12). It partly covers the matter, but partly does not, because, as the hon. Members for Somerton and Frome and for Northampton, North have also suggested, it is all to do with public information, and unless there is public information about the secret world in question, we cannot fulfil our function as legislators in making sure that the public know what is going on.
The distinction between my amendment and clause 44(12) is that subsection (12) deals only with what the commissioner does. It may well be that implied within that is a protection for those who report what he has to say. The more I think about it the more convinced I am that I was right and that the Under-Secretary of State for Justice is not quite correct in her understanding of the law of defamation, but I shall check that during the short Adjournment and discuss it with her outside the Committee. However, I can see that it would be a somewhat fruitless and self-regarding exercise to pursue the amendment further than necessary.
The Under-Secretary gave me qualified support. The purpose of introducing the concept of absolute privilege as opposed to qualified privilege is that the latter requires the complainant to demonstrate that the publisher was actuated by malice—that he was using the occasion of privilege to some wrong or improper purpose. The most obvious example of that would be to get some sort of revenge. I do not need to go into that. It is important that the media should be free to report the commissioner’s reports and that the public should have access to what he has to say, either in summary or verbatim form. I am happy as long as the commissioner does not feel inhibited in telling us what he has found and from drawing conclusions from his findings, either in the form of further allegations of fact or comments on the facts that he has found, and the media are not be inhibited in reporting what he has to say.
This is not a debate on the sub judice rule. In my view, the sub judice rule is much misunderstood. That is probably why it is not necessarily a good idea to discuss it this morning. Under the Contempt of Court Act 1981, the law of contempt bites when proceedings are active. Within the criminal sphere, proceedings are active in a number of ways, but essentially proceedings are active once a charge has been laid.
 Ms Keeble rose—

Edward Garnier: I see that the hon. Lady wants to intervene.

Nicholas Winterton: Is this on sub judice?

Sally Keeble: I was only going to say that I was not talking about the legislation, but about the rules in this place.

Nicholas Winterton: We cannot talk about that on this amendment.

Edward Garnier: This discussion is entirely sub judice.
We discipline ourselves within this House, so that although we are not controlled by the courts, we respect them and therefore do not breach the law that would apply were we not in Parliament—at least, we do our best not to do so. We are not as a matter of law obliged to follow the courts, but we do because we respect the courts’ power and functions. We will have a talk about that later when I can charge the hon. Lady for the advice.

Nicholas Winterton: Do you want to withdraw the amendment?

Edward Garnier: I do not want to, but I am jolly well going to. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clause 37

Investigations requested by the Secretary of State

Edward Garnier: I beg to move amendment No. 156, in clause 37, page 26, line 6, leave out subsection (2).

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 159, in clause 37, page 26, line 46, leave out subsection (7).
No. 160, in clause 37, page 27, line 7, leave out subsection (10).

Edward Garnier: This will be a relatively brief discussion, I hope. Clause 37 is confusing because, although the policy behind this part of the Bill is to give the commissioner a great deal of independence and discretion, not only is the commissioner required—we have had this discussion before—to report to the Secretary of State, who then lays the details before Parliament, but apparently the Secretary of State can give the commissioner directions. The clause does not actually use the word “directions”; it talks about consultation. Subsection (2) states:
“The Secretary of State shall consult the Commissioner before making a request under this section.”
What is the request the Secretary of State can make? Subsection (1) states?
“The Secretary of State may request the Commissioner to investigate any matter mentioned in subsection (3) or (4) which is specified in the request.”
I do not understand why the Secretary of State needs to consult the commissioner before making a request. Why does he not simply make the request and the commissioner can consider it on its merits? However, subsection (7) states:
“It is the duty of the Commissioner to investigate any matter which is the subject of a request under this section.”
There is no independence of action, discretion or conduct there. It seems that the consultation proposed in the Bill is meaningless, and the request is not a request but an order.
Subsection (10), which is the subject of amendment No. 160—subsection (7) being the subject of amendment No. 159—states:
“Subject to any directions give to the Commissioner by the Secretary of State, it is for the Commissioner to determine the scope of, and the procedure to be applied to, an investigation under this section.”
There is the fig leaf of independence, but I am concerned that behind it are messages coming from the Secretary of State saying, “This is a ‘request’, but you are to do the following.” It seems to me that, despite the warm words that no doubt will be uttered, the commissioner is not clearly given discretion; he is not given the independence of action to look into what he wants.
That is not an entirely fanciful concern. Let us assume that a big political storm is brewing over the management of prisons. I am sure that this is completely impossible to imagine, but let us assume that there is a real mess in the prison estate. It is terribly overcrowded. The suicide rate has reached, say, 87 during the course of a year and the suicide rate for prisoners coming out of prison is very high. There is a tremendous public hue and cry about that, which is engendering a great deal of public interest.
The Secretary of State may wish to request the commissioner to investigate “any matter mentioned” and he may wish to consult the commissioner before making a request under the clause. All those behind-the-hand consultations, all those “requests” and “consultations”, are often, given the balance of power in the hierarchical system that we run, in fact orders and directions. That causes me concern. The purpose of my amendments to delete the subsections to which I have referred is to ask the Government to make it clear in the record today that the commissioner will not be told what to do, but will have total discretion to look into things that require looking into and to report as he finds.

David Heath: The hon. and learned Gentleman is absolutely correct. What we are talking about is clearly not a request but a direction. It is framed in such a way that it can be interpreted only as a direction. There may be circumstances in which it is appropriate for the Secretary of State to direct, although given the independence that we have sought to achieve for the commissioner, I imagine that it would be better if it were a request. What I am not prepared to accept is subsection (10), which in effect allows the Secretary of State to limit the scope of an investigation, having requested/directed that that investigation should take place.
The subsection gives the commissioner discretion to determine the scope and the procedure, but qualifies that by saying:
“Subject to any directions given to the Commissioner by the Secretary of State”.
It cannot be right for the Secretary of State, who in this instance will be the person who is politically responsible for the department under investigation, to limit the scope of an independent investigator conducting an investigation into incidents that may have happened within the premises run by that service. It is absolutely wrong that that should be the case. I think—I hope—that it is inadvertent. If it is not, the Minister must explain why she feels that the Secretary of State should have the power to limit the scope and direct the procedure adopted by this independent commissioner in the pursuit of his or her duties. That cannot be right.

Maria Eagle: I am not sure what the copy of the Bill held by the hon. Member for Somerton and Frome says, but subsection (10) in my copy says:
“Subject to any directions given to the Commissioner by the Secretary of State, it is for the Commissioner to determine the scope of, and the procedure to be applied to, an investigation under this section.”
It is therefore not the Secretary of State who determines what the scope of any investigation should be.
It might help the Committee if I explain the circumstances in which we envisage use of this element of the remit and the type of case in which it has been used in the past. In some cases, a swift investigation by an existing body with proven technical expertise into a set of circumstances that requires urgent independent scrutiny might be a very useful method—indeed, the best method—of getting to the bottom of what has happened. That is the purpose of having the powers set out in the clause in the Bill at all.
For example, in 2004, the prisons and probation ombudsman investigated a major fire and disturbance at Yarl’s Wood immigration removal centre that happened suddenly one night. It obviously caused a lot of concern and needed a swift, independent look at what had happened. Other examples of what the ombudsman has been asked to investigate include attempted suicides in prison that resulted in serious injury short of death. The purpose of the clause is to continue the current practice— which is not set on a statutory basis—of the prisons and probation ombudsman that he can be asked to investigate an incident of concern on request by the Secretary of State. We are merely replicating that in the statutory provisions.
Investigations under clause 37 will, by definition, be special commissions from the Secretary of State. That is why it provides for the Secretary of State to give the commissioner directions as to the matters to be investigated—the terms of reference or the overall remit. “Will you go and have a look at what happened at Yarl’s Wood last night?” is the sort of direction that we anticipate the Secretary of State will give. It would then be for the commissioner to decide precisely the scope of the his action and how he does what he does.

David Heath: That is not what the clause says.

Maria Eagle: That is what it says in subsection (10).
However, we recognise that it will be important for the commissioner to be consulted by the Secretary of State before commissioning an investigation. Obviously, the Secretary of State will want to hear whether the commissioner thinks that he can do something that suddenly comes up. We would not want to ask him to do something without being clear whether he can carry out the commission. That is why the provision makes reference to the commissioner being consulted by the Secretary of State. It is clear that the commissioner can determine the scope of and procedure to be applied in the investigation that he then undertakes. We believe that that will give an appropriate balance of powers and form the basis of a viable relationship between the Secretary of State and the commissioner for the purposes of the clause.
The amendments tabled by the hon. and learned Member for Harborough would remove the duty on the commissioner to carry out an investigation requested under the clause. The result would be that the commissioner would, in effect, carry out the commissions by agreement and could, if minded to do so, refuse to carry out a particular investigation. I do not understand how that would have helped in respect of Yarl’s Wood, where an investigation was needed. The commissioner could just say, “Well, I am not going to do it.” Clearly, the commissioner has a great deal of independence, but the whole point of the powers under the clause is to give the Secretary of State the capacity to have an ad hoc, swift, independent but expert investigation into a matter that cannot perhaps be easily anticipated.

Edward Garnier: I do not think that I heard the hon. Lady say this—I hope that I did not—but is she suggesting that the ombudsman needed to be directed by the Secretary of State to look into Yarl’s Wood, or that he was utterly reluctant to do so?

Maria Eagle: The ombudsman was asked to investigate on an ad hoc basis. I am not absolutely sure that his remit at the time extended to immigration removal centres.

Edward Garnier: On that basis, the example is not terribly useful.

Maria Eagle: The point of the example and the clause is to make it clear that, occasionally, it is in the public interest and necessary for the Secretary of State to be able to respond to an incident, which was unforeseen and presents great public concern, with a swift sending in of independent expertise that can report on what has happened within a short time.
Clearly, the generality of the clause is about giving the commissioner the power that the current prisons and probation ombudsman has to investigate complaints and deaths. Perhaps a better example than Yarl’s Wood, where deaths did occur, is a case involving a near-death. There have been several cases of people attempting suicide, not dying and not necessarily making a complaint—Indeed, some might not have recovered consciousness and could not make a complaint. The ombudsman can only investigate complaints from individuals within the custody setting, and deaths. There are circumstances in which the Secretary of State might want to ask him to investigate matters that are not technically within his remit, but which he has the expertise to investigate and on which he could produce a good, swift, independent report. The arrangements already exist; we are just putting them into statute. There is no question in this part of the remit of the Secretary of State telling the commissioner what to say or what not to look at, because the commissioner will be determining the scope and the way in which he carries out the investigation into what he has been asked to investigate.
The issue here is about matters that are partially out of the commissioner’s remit—that do not involve deaths or complaints—that the Secretary of State would like him to look at. The Secretary of State will consult him first and then ask him to take a look. He will be able to get on with his usual job, independently and will himself determine how to proceed. He will then write a report, which will be published. The sinister interpretation made by Opposition Members is not the intention or the import of the Bill. I hope that the hon. Member for Somerton and Frome accepts that.
We do not seek to enable the Secretary of State to fetter what the commissioner would say in these circumstances. Rather, there will be a proper consultation about the technical possibility of doing an investigation that the Secretary of State might, on an ad hoc basis, wish the commissioner to look at. That would be done swiftly, and the commissioner would then get on and do the job. There is no more to it that that. I hope that that persuades the hon. Gentleman—we will find out soon whether it does.

David Heath: This is one of those Humpty-Dumpty moments where we are invited by a Minister to look at words that are written on the paper, and construe them in the opposite way to how any other person would understand them. I return to subsection (10). How can the words:
“Subject to any directions given to the Commissioner by the Secretary of State”,
be construed in any way other than as a potential—I must say potential—limit to the commissioner’s discretion to determine the scope of and the procedure to be applied to an investigation and a decision? Had it said,
“following a direction from the Secretary of State”,
I might have been able to understand the Minister’s point, but it says,
“Subject to any directions...by the Secretary of State”.
Despite the hon. Lady’s suggestion that I am incapable of reading the clause in front of me, those words cannot be interpreted as being anything other than an overlying control of the discretion on the part of the Secretary of State. If it is her intention to state the wide discretion available to the commissioner, she would be better off leaving those 10 words out altogether. In that way everybody would be clear that a direction would be given by the Secretary of State, and that once it had been given it would be for the commissioner to determine the scope and nature of the investigation. I invite the hon. Lady to consider that before Report.

Edward Garnier: I thought that the debate would be quite clear, but it has become rather more muddled as we have moved along. There will not be any reluctance on the part of the commissioner—certainly not the commissioner or ombudsman who gave evidence at the evidence session—to investigate matters that are within its remit. In the same way, there has been no reluctance on the part of prisons inspectors—Her Majesty’s chief inspector of prisons, the chief inspector of the constabulary or of the probation service, or all the other senior inspecting officials—to investigate matters within their remit. The only reluctance comes from Ministers. This is not a party political point. I am sure that in the last Conservative Government there were occasions when my colleagues would have preferred things not to have come out and when they did come out, preferred them not be investigated, but that is not the point. The point is that when things go wrong and offices are created to investigate things that go wrong, they should jolly well get on and investigate them and not feel in the least bit inhibited. There is a confusion: the Bill will give the commissioner the powers of a High Court judge to summon people and documents. Whether he can summon the Secretary of State or summon documents from his Department it will be interesting to find out in due course, when he sends a request to the Secretary of State using the powers given him in the Bill.
The Minister seems to be saying that clause 37 is essentially about ad hoc investigation. If the Government want to use the office holder to carry out a particular function on an ad hoc basis, they are appointing the man and not the office holder. We must distinguish between the office of the commissioner and the individual office holder, who may or may not be requested to hold an inquiry, in the same way that a judge or a chairman of a statutory inquiry might be requested to do so by the Government. When we have a train disaster, the Government often set up either a judicial or other statutory inquiry, but that does not affect the position of the coroner as an office holder. In the clause, the Government are saying that there may be circumstances in which they want particular investigations to take place. I am not suggesting that the Government should not be enabled to cause particular people to carry out particular investigations, but it is not apt to do so under clause 37.
My suspicion, which has not been allayed by the arguments put forward by the hon. Lady either in response to me or the hon. Member for Somerton and Frome, is that the Government want the Secretary of State to have some form of direction, a power of control, over matters that the commissioner should look into. I do not think that that is right; either we have an independent commissioner or we do not, and on the face of the Bill we do not.
I shall not press the amendment to a Division, but I urge the Government to be clear in their thinking. To elide functions and to allow confusion to exist, either because the Government want that to happen or because they have not thought about it, is not a sensible way to make legislation. As I am happy to tell the Minister of State, this a plum-duff of a Bill. It is a complete meccano set of lots of different things bolted together; it is an ugly Bill and a badly-designed one. We should be even more careful when we have a Bill of this nature not to make mistakes and not to allow the Government to put things in that they have not properly thought about.
As a condition of my withdrawal of the amendment, I ask the Government to think a little more carefully before we have to deal with this sort of measure in future.

Maria Eagle: I am happy to undertake to do that.

Edward Garnier: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.

Clause 38

Reports on the outcome of an investigation under section 37

Amendments made: No. 296, in clause 38, page 27, line 32, leave out from beginning to ‘Commissioner’ and insert—
‘( ) This section applies where the Commissioner has carried out an investigation following a request by the Secretary of State under section 37.
( ) The’.
No. 297, in clause 38, page 27, leave out lines 42 to 44 and insert—
‘(3) Where the investigation relates to a death or matters connected with a death, the name of the deceased person must not be published under subsection (2)(c) without the consent of a personal representative of that person.’.—[Maria Eagle.]

Clause 38, as amended, ordered to stand part of the Bill.

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.